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[2026] NSWCA 42
respondent. Appeal dismissed. The appellant was ordered to pay the respondent’s costs as agreed or assessed.
The Court of Appeal dismissed Mr Luo’s appeal because he had not obtained leave, and had not shown that the appeal concerned at least $100,000 in value so that he could appeal without leave. The Court treated NCAT’s Stage One disciplinary findings as a final decision. It also rejected Mr Luo’s argument that an earlier case gave him a direct appeal as of right to the Court of Appeal, because that case involved a different kind of Tribunal panel.
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2,184 words · generated 08/10/2026
This was a procedural ruling by Free JA on the Health Care Complaints Commission’s motion to dismiss Yun Sen Luo’s purported appeal. The central question was not whether NCAT had correctly found the disciplinary complaints proven. It was whether Mr Luo could bring his appeal without first obtaining leave.
8 cited instruments linked from this judgment.
Mr Luo was a registered Chinese medicine practitioner. In May and June 2018 he treated Patient A, an elderly patient with Type 2 diabetes who had consulted him about a skin condition. Patient A attended Hornsby Hospital on 8 June 2018 and died soon after arrival. Mr Luo was later charged with manslaughter and found not guilty on 25 March 2022. The HCCC then brought disciplinary proceedings in NCAT under the Health Practitioner National Law. The allegations included failures to obtain a sufficient medical history, advice to cease “Western medicine”, and failures to respond appropriately to new symptoms and an apparent deterioration in Patient A’s health [1]-[3].
After a seven-day hearing, NCAT found three of four complaints proven at Stage One. The tribunal had not yet determined remedial orders, which were reserved for a Stage Two hearing [4]. The Stage One decision concerned findings on the alleged facts and their characterisation as unsatisfactory professional conduct or professional misconduct.
Mr Luo challenged those findings in the Supreme Court. Griffiths AJA rejected his thirteen grounds on 29 September 2025. The primary judge observed that many grounds were factual in substance, and that an alleged error of law is not necessarily a question of law. The grounds and submissions were also described as confusingly expressed and substantially overlapping [6]-[7].
Mr Luo then filed a notice of appeal containing 44 grounds. He did not seek leave. The HCCC promptly notified him of its position that leave was required and proposed a procedure for an application for leave. Mr Luo maintained that leave was unnecessary, including because he considered the appeal to concern professional discipline and relied on the legislation governing Tribunal appeals [8]-[13]. The HCCC sought dismissal as incompetent. Free JA granted that motion and ordered Mr Luo to pay the HCCC’s costs as agreed or assessed [22]-[24].
The Court’s reasoning proceeded from the appeal’s statutory route and the monetary threshold in s 101(2)(r) of the Supreme Court Act 1970 (NSW). The provision, as described in the judgment, requires leave to appeal from a final judgment or order unless the matter at issue, or a claim or question respecting property or a civil right, meets the specified value of $100,000 or more [9].
The judge stated that the principles governing this provision were clear. The party asserting a right to appeal without leave bears the onus of showing that the monetary threshold is met. That entails demonstrating that success on appeal would improve the party’s financial position by at least $100,000. It also requires a realistic prospect that the appeal would lessen the relevant prejudice by a quantifiable amount, supported by proper evidence [14], [17]. Those principles were drawn from Gaynor v Attorney General of New South Wales [2020] NSWCA 48 at [13]-[19].
The Court treated NCAT’s Stage One findings as a final judgment or order, rather than an interlocutory decision [15]. That classification mattered because it brought the appeal within the framework described in s 101(2)(r). The fact that a later Stage Two hearing would determine remedial orders did not prevent the Stage One findings from being final for this appeal analysis.
Mr Luo had not addressed the monetary threshold because his position was that it did not apply. The judge nevertheless made allowance for his self-represented status and for the possibility that the matter might satisfy the threshold [18]-[19]. On the material and the nature of the order under challenge, however, there was “no apparent basis” to conclude that setting aside the disciplinary findings would immediately and quantifiably alter his financial position by more than $100,000 [20]. The Court did not find that a professional disciplinary finding can never have a financial effect. Its conclusion was specific to the basis presented in this appeal.
The judge also rejected Mr Luo’s reliance on Health Care Complaints Commission v Robinson [2022] NSWCA 164 as establishing a right of direct appeal to the Court of Appeal. Robinson involved a Tribunal panel that included a judicial member. The Tribunal panel in Mr Luo’s case did not. The judgment said that, in the latter situation, a question-of-law appeal to the Supreme Court was assigned to the Common Law Division, as had occurred in Mr Luo’s earlier proceedings [16].
Finally, because the monetary threshold had not been shown and Mr Luo had not applied for leave, the appeal was incompetent. The judgment relied on s 46(1)(b) of the Supreme Court Act and r 51.41(1) of the Uniform Civil Procedure Rules 2005 (NSW), which provide procedural authority to dismiss an incompetent appeal on a respondent’s objection [12], [22]-[23].
The judgment does not present a change in the law. It applies existing statutory provisions and appellate authorities to the procedural position before the Court. Before this decision, the relevant framework, as summarised by Free JA, was that a party appealing from a final judgment or order needed leave unless the monetary threshold was met. The appellant asserting a right to proceed without leave bore the burden of proving that threshold, including a realistic, evidentially supported financial consequence of at least $100,000 [14], [17].
The decision applies that framework to a Stage One NCAT professional-discipline finding. It confirms, for the circumstances before the Court, that such a finding is a final judgment or order for the purpose of the leave analysis [15]. It also clarifies the distinction the judge drew between Tribunal decisions involving a judicial member and those that do not when considering the route for a question-of-law appeal [16].
The judgment does not purport to establish that every professional-disciplinary appeal necessarily requires leave regardless of its subject matter. Rather, it cites Hilton v Legal Profession Admission Board [2017] NSWCA 232 as an example of the leave requirement applying to adverse disciplinary findings and applies the threshold principles to this particular appeal [14]. Nor does it decide the merits of Mr Luo’s challenge to NCAT’s findings.
The practical procedural consequence in this case was that a party who maintains an appeal is as of right, but does not establish the statutory monetary threshold, cannot avoid the leave requirement simply by describing the appeal as one concerning professional discipline or as raising questions of law. The judgment’s conclusion was that leave was required on the circumstances presented, and that the appeal could be dismissed when it had not been sought [22]-[24].
The judgment includes a citation inconsistency worth noting for research purposes. Paragraph 15 refers to “HCCC v Robinson” alongside a citation to (1960) 104 CLR 186; [1960] HCA 40, while paragraph 16 and the cases cited section identify Health Care Complaints Commission v Robinson [2022] NSWCA 164. The supplied text does not resolve that discrepancy. The proposition attributed to Robinson in paragraph 15 should therefore be checked against the original judgment before being relied on.
At [14], Free JA stated that “the party seeking to appeal” must demonstrate that the subject matter satisfies the monetary threshold. In plain English, the person who wants to proceed without leave must establish why the statutory exception applies; it is not enough to assert that leave is unnecessary.
At [17], the judgment explains what that burden entails. The appellant must show that success would improve their financial position by at least $100,000, and that there is a realistic prospect of reducing prejudice in a quantifiable amount. The judge also emphasised the need for “a proper evidentiary basis”. In practical terms, an asserted financial consequence must be supported by material, not merely described as possible.
At [15], the Court treated an NCAT Stage One finding of unsatisfactory professional conduct or professional misconduct as a final judgment or order. That means the fact that a later Stage Two hearing may deal with remedial orders did not make the Stage One decision interlocutory for the purpose considered here.
At [16], the judgment distinguishes Robinson. The Court said that the relevant Tribunal panel in Robinson included a judicial member, while the panel in Mr Luo’s matter did not. The case therefore did not support Mr Luo’s asserted direct appeal to the Court of Appeal as of right.
At [20], Free JA acknowledged the possibility that a disciplinary finding might have financial significance but found no apparent basis to quantify the effect here at the required level. The wording is cautious: the Court’s point was that the evidence and nature of the order before it did not establish the threshold.
At [22], the conclusion is expressed directly: “Leave is required and the purported appeal is therefore incompetent.” The consequence followed from the absence of an application for leave, not from a determination of whether the underlying disciplinary findings were correct.
The decision is most directly relevant to an appeal from a final judgment or order where the appellant relies on the proposition that leave is unnecessary under s 101(2)(r) of the Supreme Court Act. It is particularly relevant where the appeal challenges professional-discipline findings and the appellant has not shown that success could produce a financial improvement of at least $100,000.
A fact pattern closer to this case would include an NCAT Stage One finding of unsatisfactory professional conduct or professional misconduct; a subsequent appeal to the Supreme Court; a further appeal where leave has not been sought; and an appellant who asserts that the appeal is as of right without putting forward evidence of a financial consequence meeting the threshold. In that setting, the judgment indicates that the appellant’s asserted position does not itself establish the right to appeal without leave [14], [18]-[22].
The case is also relevant when a party relies on Robinson to claim a direct appeal to the Court of Appeal. The distinction identified by Free JA is whether the Tribunal panel included a judicial member. The judgment does not say that this feature resolves every question about appeal rights; it says that Robinson did not support the particular direct-appeal argument in the circumstances before it [16].
The decision should not be overstated. It does not decide what evidence would be sufficient in a different disciplinary case, whether a particular professional consequence can be valued at $100,000, or how the threshold applies to other types of final orders. It also does not determine whether the substantive grounds of appeal would have succeeded if leave had been obtained.
The supplied judgment is dated 26 March 2026 and contains no citations to decisions that later treated Luo v Health Care Complaints Commission. On the material provided, it is not possible to describe subsequent judicial treatment of this decision.
The judgment itself relies on earlier authorities. It invokes Gaynor for the threshold principles and cites Hilton and Clyne in support of the application of a leave requirement to professional-discipline appeals [14], [17]. It refers to McGinn for the procedural proposition that the rules specify circumstances in which an appeal may be dismissed as incompetent [12]. It cites EFA in describing a Stage One disciplinary hearing [4]. Robinson is distinguished because the Tribunal panel there included a judicial member, unlike the panel in Mr Luo’s matter [16].
Those references show the reasoning’s stated foundations, but do not establish how later courts have applied this decision. Any account of later treatment would require later judgments not included in the supplied material.
The decision leaves open what evidence, in a different professional-discipline appeal, would establish a realistic prospect of a financial improvement of at least $100,000. It identifies the required kind of showing, but does not examine examples of evidence or specify how indirect professional or commercial consequences should be valued [17]-[20].
It also does not determine the full range of circumstances in which a disciplinary finding may produce an immediate, quantifiable financial consequence. The judge’s conclusion was that no apparent basis for the required amount was shown in this case, not that disciplinary findings are incapable of affecting a practitioner’s finances [20].
The judgment’s distinction based on whether an NCAT panel includes a judicial member is specific to the appeal pathway issue addressed in paragraph 16. It does not provide a comprehensive account of every possible appellate route under the Civil and Administrative Tribunal Act 2013 (NSW), the Health Care Complaints Act 1993 (NSW), or the Health Practitioner National Law.
Finally, the apparent mismatch in the Robinson citation at [15] remains unresolved in the supplied text. The decision’s core reasoning on the leave threshold is separately stated through s 101(2)(r) and Gaynor, but the citation should be verified before that particular reference is used in legal research.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Luo v Health Care Complaints Commission [2026] NSWCA 42
Hearing dates: 16 March 2026
Date of orders: 16 March 2026
Decision date: 26 March 2026
Before: Free JA
Decision: (1) Appeal dismissed.
(2) Appellant to pay the respondent’s costs as agreed or assessed.
Catchwords: CIVIL PROCEDURE – requirement of leave – monetary threshold not shown to be satisfied – reasonable and fair although to advise appellant of requirement to seek leave
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 29(4)
Health Care Complaints Act 1993 (NSW)
Health Practitioner National Law
Supreme Court Act 1970 (NSW), ss 46, 101
Uniform Civil Procedure Rules 2005 (NSW), r 51.41(1)
Cases Cited: Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40
Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339
Gaynor v Attorney General of New South Wales [2020] NSWCA 48
Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450
Health Care Complaints Commission v Robinson [2022] NSWCA 164
Hilton v Legal Profession Admission Board [2017] NSWCA 232
McGinn v Cranbrook School [2015] NSWCA 378
Category: Procedural rulings
Parties: Yun Sen Luo (Appellant)
Health Care Complaints Commission (Respondent)
Representation: Counsel:
Y S Luo (Self-represented) (Appellant)
P Lowson (Respondent)
Solicitors:
Health Care Complaints Commission (Respondent)
File Number(s): 2025/399623
FREE JA: Yun Sen Luo (Mr Luo) is a registered Chinese medicine practitioner. The respondent (HCCC) is the responsible regulator under the Health Care Complaints Act 1993 (NSW) and the Health Practitioner National Law. In May and June 2018 Mr Luo provided treatment to an elderly patient who has been referred to in proceedings as “Patient A”. Patient A suffered from Type 2 diabetes. She consulted with Dr Luo not about her diabetes but about a skin condition.
Patient A presented to Hornsby Hospital on 8 June 2018 and unfortunately died soon after arrival. The circumstances of Dr Luo’s treatment of Patient A gave rise to criminal proceedings, in which Dr Luo was charged with manslaughter. On 25 March 2022 Judge Pickering SC found Dr Luo not guilty. Thereafter the HCCC brought disciplinary proceedings in NCAT under the National Law. The hearing proceeded on an amended complaint, filed on 10 May 2024, in which the HCCC made four complaints about the conduct of Dr Luo.
The HCCC alleged that Mr Luo had engaged in unsatisfactory professional conduct, and professional misconduct, within the meaning of the National Law, in his treatment of Patient A. The particulars of the complaints included that Mr Luo failed to obtain a sufficient medical history for Patient A, advised her to cease all “Western medicine” (including her prescribed medicine for “high blood sugar”), failed to consider new symptoms as they emerged and the apparent deterioration in Patient A’s health and failing to reconsider his diagnosis and treatment plan in light of Patient A’s developing condition.
After a seven day hearing, the Tribunal found that three of the complaints (namely, complaints one, three and four, were proven). This was what is known as a “Stage One” hearing, in which the Tribunal made findings on the allegations of fact and the related characterisation of those findings as constituting unsatisfactory professional conduct and professional misconduct (see Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 at [44]). The Tribunal did not determine the appropriate remedial orders. Such orders will be the subject of a Stage Two hearing, which has yet to occur.
Mr Luo brought proceedings in the Supreme Court challenging the Stage One decision of the Tribunal. His appeal was commenced by summons and by the time of hearing before the primary judge, Griffiths AJA, Mr Luo relied on a further amended summons. The appeal was brought pursuant to cl 29(4) of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW). Pursuant to that sub-clause, an appeal may be brought as of right on any question of law or, with leave of the court, on any other grounds.
Mr Luo did not apply for leave to appeal on grounds other than question of law. Instead, he raised thirteen grounds which he asserted were “errors of law” which, according to Mr Luo, raised questions of law. Mr Luo was self-represented at trial before Griffiths AJA. The primary judge observed, at [55], that many of the errors asserted by Mr Luo were properly characterised as errors of fact, for which leave to appeal is required. Even to the extent that Mr Luo identified alleged errors of law, it did not follow that these were also questions of law, given that the two concepts are not synonyms, The primary judge also observed, at [62], that the various grounds of appeal and related submissions advanced by Mr Luo were confusingly expressed and substantially overlapped with each other.
Each of Mr Luo’s thirteen grounds was rejected by the primary judge, in a judgment delivered on 29 September 2025.
On 17 December 2025, Mr Luo filed a notice of appeal. It contains 44 grounds, many of which effectively repeat the grounds relied on before Griffiths AJA at trial.
Mr Luo has not sought leave to appeal. The HCCC’s position, about which it put Mr Luo on notice just two days after he filed his notice of appeal, is that leave is required under s 101 of the Supreme Court Act 1970 (NSW) (Supreme Court Act). The argument turns on the application of s 101(2)(r). Pursuant to that part of s 101(2), leave is required to appeal from a final judgment or order in proceedings of the Court, other than an appeal that either involves a matter at issue amounting to, or of the value of, $100,000 or more or, in the alternative, involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more.
Mr Luo has been steadfast in his position that he does not require leave. He maintains that because the subject matter of his appeal is professional discipline, s 101(2)(r) has no application. He also seeks to rely on an argument that under the relevant provision of Sch 5 to the Civil and Administrative Tribunal Act, he can appeal on a question of law to the Court of Appeal. Mr Luo communicated that position to the HCCC on 2 February 2026. The HCCC, quite reasonably in the circumstances, proposed to Mr Luo and the Registrar of the Court of Appeal that the Court should make orders under which Mr Luo would be required to file and serve a summons seeking leave to appeal and a white folder (being the appropriate procedure to be followed in leave matters).
Mr Luo opposed that course and maintained that leave is not required. That was apparently also in the face of indications from the Registrar when the matter was heard on 16 February 2026 that leave was required and that a summons seeking leave should be filed.
Following those events, the HCCC filed the present motion on 24 February 2026 seeking that the putative appeal be dismissed, in essence, on the basis that it is incompetent in circumstances where leave is required but has not been sought. Pursuant to s 46(1)(b) of the Supreme Court Act, a single Judge of Appeal may exercise the powers of the Court of Appeal to dismiss an appeal “for want of prosecution or for other cause specified in the rules”. An appeal may be dismissed as incompetent upon the objection of a respondent under r 51.41(1) of the Uniform Civil Procedure Rules 2005 (NSW). The rules thus specify the present circumstances as providing cause for an appeal to be dismissed: McGinn v Cranbrook School [2015] NSWCA 378 at [5].
When the notice of motion was heard before me today, I clarified with Mr Luo whether his position had changed. It had not. Mr Luo has maintained the position that leave is not required and he has no intention of filing an application for leave to appeal. The matter therefore turns on whether or not leave is in fact required.
The authorities as to the application of s 101(2)(r) of the Supreme Court Act are clear. Where a party seeks to appeal from a final judgment or order, the sub-section is engaged, and it falls to the party seeking to appeal to demonstrate that the subject matter of the appeal satisfies the monetary threshold. It is for this reason that the requirement for leave has been consistently held to apply in cases involving adverse disciplinary findings about professional conduct; see for example, Hilton v Legal Profession Admission Board at [46]; see also, for the cognate requirement of leave, in the High Court, Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40: at 205.
Turning to the particular context of this matter, a finding of NCAT of unsatisfactory professional conduct or professional misconduct following a Stage One hearing is a final judgment or order, not an interlocutory one; see HCCC v Robinson (1960) 104 CLR 186; [1960] HCA 40 at [83] [85], see also [18] and [25].
While on HCCC v Robinson, I note that Mr Luo sought to rely on that case as authority for the proposition that a practitioner in his position can appeal on a question of law from the Tribunal directly to the Court of Appeal. As the HCCC has correctly pointed out in its submissions, that is the situation where the appeal is brought from a decision of the Tribunal constituted by a panel that includes a judicial member, as was the case in Robinson. The situation is different where the Tribunal does not feature a judicial member, as in the present case. In that latter scenario, an appeal on a question of law made to the Supreme Court is assigned to the Common Law Division, as has occurred in this case. Robinson therefore does not support Mr Luo's position in terms of providing a right to appeal on a question of law as of right to the Court of Appeal.
The principles which apply in the application of s 101(2)(r) were stated by the Court of Appeal in Gaynor v Attorney General of New South Wales [2020] NSWCA 48 at [13]-[19] (per Bell P, Basten and Leeming JJA agreeing) (Gaynor v Attorney General). They include the following:
the onus lies on the party asserting that it may bring its appeal as of right to demonstrate that the amount in issue meets the $100,000 threshold;
this involves showing that a successful appeal would improve the party’s financial position by at least that amount; and
this requires demonstration of a realistic prospect on appeal of lessening the prejudice that the party would otherwise suffer by reason of the order appealed against. There must be a proper evidentiary basis for the party’s contentions in this regard.
Because of the position he has taken that he does not require leave, Mr Luo has not taken on the burden of trying to demonstrate that the $100,000 monetary threshold in s 101(2)(r) is satisfied. Instead, he has effectively chosen to rely on his assertion that the limitation simply does not apply and he may appeal as of right.
In approaching this issue, I am conscious of the fact that Mr Luo is appearing for himself and does not have a benefit of legal assistance. I therefore make every allowance in his favour for the possibility that the matter could satisfy the $100,000 threshold.
However, given the nature of the order that is in issue, that is, a finding of unsatisfactory professional conduct and professional misconduct in the Tribunal, there is no apparent basis to conclude that a success on an appeal going to the validity of those orders would alter Mr Luo's financial position in an immediately quantifiable way. Therefore, this is not a situation where one can say there is a realistic prospect on appeal that Mr Luo's success leading to a lessening of a prejudice that he would otherwise suffer in an amount that is quantifiable and in an amount over $100,000.
In approaching these issues, I make allowance for the fact that Mr Luo, in not having the benefit of legal representation, may not have fully appreciated the leave requirement and the significance of not bringing an application for leave. However, in this case, the HCCC has quite fairly, in clear terms, and on two separate occasions, let Mr Luo know about the requirement for leave. It has also proposed what was a perfectly sensible and reasonable solution to the deficiency, that being the set of orders which was proposed to be made on 16 February 2026.
Mr Luo, having had the opportunity to consider that position, rejected that course and has effectively chosen to maintain his view that leave is not required. Unfortunately for Mr Luo, I do not accept that he is correct in that regard. Leave is required and the purported appeal is therefore incompetent.
For that reason, the appeal should be dismissed in accordance with the notice of motion filed by the HCCC, and Mr Luo should pay the HCCC's costs as agreed or assessed of the appeal and the motion.
The orders of the Court are:
Appeal dismissed.
Appellant to pay the respondent’s costs as agreed or assessed.
**********
Luo
Health Care Complaints Commission [2026] NSWCA 42
(1960) 104 CLR 186
(2021) 106 NSWLR 383
Appeal dismissed. The appellant was ordered to pay the respondent’s costs as agreed or assessed.